Dear lep27-ga,
Thank you for you clarification. First, this is quite a complex area
of the law and I must remind you that my answer is not legal advice as
I am not a lawyer and you should consult a solicitor if you are
seeking legal advice.
The Law Society is responsible for the supervision of solicitors in
England and Wales. Part of their organisation is the Consumer
Complaints Service (CCS) (formerly the OSS) which operates a
disciplinary tribunal in the form of an ?Adjudication Panel?. More
serious matters go to the Solicitors' Disciplinary Tribunal which is
constitutionally independent of the Law Society although its
administration is funded by the society.
Public authorities are not defined in the Human Rights Act and it is a
matter for the courts to decide. However, in Pine v Solicitors?
Disciplinary Tribunal (2001 EWCA Civ 1574) the judge said
"...it was also common ground that both the Law Society and the
Tribunal are public authorities for the purposes of s.6 Human Rights
Act 1998".
Now for the detail. As you know, Section 6 of the Human Rights Act,
1998, uses the phrase "public authority".
6. - (1) It is unlawful for a public authority to act in a way which
is incompatible with a Convention right.
(3) In this section "public authority" includes-
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising
functions in connection with proceedings in Parliament.
http://www.hmso.gov.uk/acts/acts1998/80042--a.htm#6
Convention Rights appear here.
http://www.hmso.gov.uk/acts/acts1998/80042--d.htm
The act does not define what is meant by Public Authority and it is a
matter for the courts to decide. However, the web site of the
Department for Constitutional Affairs gives the following guidance.
"What is a public authority?
There is no express definition of "public authority" in the Act but
the term includes:
Government departments
Local authorities
Police, prison, immigration officers
Public prosecutors
Courts and tribunals
Non-departmental public bodies (NDPBs)
Any person exercising a "public function"."
http://www.dca.gov.uk/hract/hrafaqs.htm
"The site also has a useful study guide which usefully breaks down the
public authorities into three types:
Obvious e.g. government departments, the police
Hybrid i.e. private organisations with a public function
Courts and tribunals"
See also page 39
http://www.humanrights.gov.uk/pdf/act/act-studyguide.pdf
The Solicitors? Disciplinary Tribunal has a number of powers under
the Solicitors Act 1974. The Tribunal may:
* Strike a solicitor off the Roll
* Suspend a solicitor for a fixed or indefinite period
* Reprimand a solicitor
* Fine a solicitor (fines are payable to HM Treasury)
* Ban a solicitor's employee from working in a law practice
without the consent of the Law Society (under s43 Solicitors Act
1974).
http://www.lawsociety.org.uk/professional/monitoring/tribunal.law
The Adjudication Panel has limited disciplinary powers ( these are
reviewed in R (Thompson) -v- Law Society below).
Both the Solicitors? Disciplinary Tribunal and the Law Societies
Adjudication Panel have featured in Appeal Court cases over their
Tribunals failing to enact the ECHR conventions. In neither case was
it defended that they were not public bodies in respect of Section
3(a).
R (Thompson) -v- Law Society [2004] EWCA Civ 306
The case appears here.
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2004/167.html&query=tHOMPSON&method=all
Additional information on these links.
"Comment: This case gives a useful indicator as to a circumstance
where the right to an oral hearing will be essential to ensure a fair
trial. It also illustrates the relatively high threshold set in
professional disciplinary proceedings before Article 6 will be
engaged." Page 6
http://www.bateswells.co.uk/newsletters/BWB-Winter%202005%20Public%20Law.pdf
http://www.regulatorylaw.co.uk/gotolink.cfm?infoID=9
"The fair trial provisions of ECHR Article 6.1 were not engaged when a
domestic tribunal of the Law Society held a disciplinary hearing in
private: neither a reprimand nor the imposition of a fineon a
solicitor for misconduct involved his civil rights and obligations. (R
(Thompson) v Law Society [2004] EWCA Civ 167)"
http://www.courtservice.gov.uk/cms/media/List_of_2003-4_cases_grouped.pdf
Pine v Solicitors? Disciplinary Tribunal (2001 EWCA Civ 1574)
The case appears here.
"...It was also common ground that both the Law Society and the
Tribunal are public authorities for the purposes of s.6 Human Rights
Act 1998"
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2001/1574.html&query=+%22Solicitors+Disciplinary+Tribunal%22&method=boolean
Additional information on this link.
"Article 6: Solicitor having no right to representation before
disciplinary tribunal Pine v Law Society: Court of Appeal (Sir Andrew
Morritt V-C, Buxton and Arden LJJ): 25 )October 2001 A solicitor who
was denied legal aid for representation before the Solicitors'
Disciplinary Tribunal and was unable to afford to pay for
representation did receive a fair hearing. The Court of Appeal held
that the solicitor's rights under article 6 of the European Convention
were not contravened notwithstanding the severity of the order that
the tribunal made against him."
http://www.lawtutorsonline.co.uk/newsarchive2001.htm
The Solicitors' Tribunal Annual Report.
"The enactment of the Human Rights Act also has led to some
examination of and challenge to the Tribunal's procedures, but the
Tribunal's status as an independent and impartial Tribunal has been
upheld in the Divisional Court."
http://www.solicitorstribunal.org.uk/annual_report_2001.pdf
Parliament has been discussing this question very recently and this is
a complex 66 page report on their findings which you may find useful.
"The Meaning of Public Authority under the Human Rights Act, Seventh
Report of Session 2003?04"
http://www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/39/39.pdf
I hope this answers your question. If it does not, or the answer is
unclear, then please ask for clarification of this research before
rating the answer. I shall respond to the clarification request as
soon as I receive it.
Thank you
answerfinder |
